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Rangel v. Acting Commissioner of Social Security

United States District Court, D. Arizona

September 28, 2017

Louie Anthony Rangel, Jr., Plaintiff,
v.
Acting Commissioner of Social Security, Defendant.

          ORDER

          BERNARDO P. VELASCO UNITED STATES MAGISTRATE JUDGE

         Plaintiff Louie Anthony Rangel, acting pro se, has filed the instant action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security. (Doc. 1). The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. (Doc. 11). See 28 U.S.C. § 636(c). Pending before the Court are Plaintiff's Opening Brief (Doc. 16), Defendant's Brief (Doc. 17), and Plaintiff's Reply Brief[1] (Doc. 21). For the following reasons, the Court remands this matter for further proceedings.

         I. Procedural History

         On February 16, 2012, Plaintiff protectively filed applications for disability and disability insurance benefits. (Transcript/Administrative Record (“Tr.”) 20, see also Tr. at 166-71). Plaintiff alleged disability as of June 15, 2011 due to hypertension, anxiety, and depression. (Tr. at 166, 196). Plaintiff's applications were denied initially and upon reconsideration. (Tr. 101-04, 112-19; see also Defendant's Brief at 2 n. 1). Upon Plaintiff's request for hearing, Administrative Law Judge (“ALJ”) Nancy M. Stewart held a hearing in San Diego, California, on March 6, 2014, where Plaintiff who was represented by counsel, and a vocational expert testified. (Tr. 37-72). On April 30, 2014, the ALJ issued her decision denying Plaintiff's request for benefits. (Tr. 21-31). Thereafter, the Appeals Council denied Plaintiff's request for review (Tr. 1-7), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Plaintiff then initiated the instant action.

         II. Plaintiff's Background

         Plaintiff was born on January 29, 1959 and was 55 years of age as of the date of the hearing. (Tr. at 44-45[2]). Plaintiff completed school through “a couple of classes” in the ninth grade and “didn't really go to school in junior high actually.” (Tr. at 45). All of Plaintiff's prior work, from 1977 through June 15, 2011, has been in construction, primarily pouring and finishing concrete or as a labor foreman. (Tr. at 207-201; see also Id. at 63 (describing concrete work as “all knee work. . . .[Y]ou get on kneeboards.”).

         Plaintiff stated that he grew up in a violent home with “an alcoholic, bipolar father[]” (Tr. at 384), and that his sister attempted suicide in the past, (Tr at 327). At the time of the hearing, Plaintiff lived with his wife and his 11-year-old autistic son. (Tr. 50-51, 407). The record also reflects that during some of the relevant period, Plaintiff also lived with his mother. (See Tr. at 222).

         Plaintiff stated that he could no longer work because “people bug me and depression [sic] really bad. [T]o[o] many meds [sic] high blood pressure. Don't like people speeding. Don't trust no one.” (Tr. at 218). Plaintiff testified that he has headaches and dizziness every time he gets up from the couch. (Tr. at 46). He also experiences head rushes if he bends down to pick up something. (Tr. at 47). He experiences shortness of breath and uses inhalers for asthma. (Tr. at 49, 56). He stops breathing when he is sleeping, which wakes him up, and his insurance will not cover a sleep study. (Tr. at 48-49).

         Plaintiff's back and knees ache. (Tr. at 46). Plaintiff's knees hurt if he walks too much and become stiff if he sits too much. (Tr. at 53; see also Tr. at 274 (Plaintiff's knees hurt when he walks)). He can sit for ten minutes at most because of his knees and his racing thoughts. (Tr. at 54 (he cannot sit still)). He can only stand for about as long as it takes to make a sandwich because of dizziness and aching knees and legs. (TR. at 55). His asthma makes it difficult to walk more than 800 feet. (Tr. at 56; see also Tr. at 227 (Plaintiff indicated he could walk one block before needing to rest for about five minutes)).

         Plaintiff becomes ill if he experiences stress and he “snap[s] a lot too. I was diagnosed with bipolar, so I've got my little mood swings.” (Tr. at 47; see also Tr. at 58 (Plaintiff has “mood swings” where he becomes “really angry and then I'll snap.”). Plaintiff also experiences panic attacks despite his medication for same. (Tr. at 47). He becomes anxious when driving and “can't put up with traffic….I get real, real nervous. An anxiety attack or something.” (Tr. at 51) When he is having a panic attack, Plaintiff has difficulty breathing, he sweats, and his “blood pressure goes up, heart pounding.” (Tr. at 57). When he is having a panic attack, he has to lie down and “rest my mind. If I rest my mind, I'm okay for a little while.” (Tr. at 58).

         Plaintiff testified that has difficulty being around a lot of people, loud sounds, or lights. (Tr. at 57). He does not trust people. (Id.). Even at home, he stays to himself for long periods of time. (Tr. at 58). However, he does like being around his wife and son, “[b]ut if it is somebody else, I don't like being around them. I'll go in my room. The TV's on, little kids, that's stuff that bugs me and I can't cope with it.” (Tr. at 59). Plaintiff does not engage in social activities because he is “[a]lways depressed” and does not trust anyone. (Tr. at 227). Plaintiff also testified that about three times a week, he sees things that he describes as “something black that's not there or something dark” and he hears mumbling. (Tr. at 56-57).

         Plaintiff's medications include inhalers for asthma, and dipropionate, hydrochlorothiazide, lisinopril, amlodipine besylate, and losartan for high blood pressure. (Tr. at 258; see also Tr. at 738). Medications for depression, mood, anxiety, and bi-polar disorder include Cymbalta, clonazepam, and Abilify. (Tr. at 258, 738; see also Tr. at 407 (Plaintiff has also taken Risperdal for mood stabilization)). He has also been prescribed trazodone for insomnia. (Id.).

         III. The ALJ's Decision

         A. Claim Evaluation

         Whether a claimant is disabled is determined pursuant to a five-step sequential process. See 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant must show that: (1) he has not performed substantial gainful activity since the alleged disability onset date (“Step One”); (2) he has a severe impairment(s) (“Step Two”); and (3) his impairment(s) meets or equals the listed impairment(s) (“Step Three”). Id. “If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed…, the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity (RFC)[3]….After developing the RFC, the ALJ must determine whether the claimant can perform past relevant work…. If not, then at step five, the government has the burden of showing that the claimant could perform other work existing in significant numbers in the national economy given the claimant's RFC, age, education, and work experience.” Dominguez, 808 F.3d at 405.

         B. The ALJ's Findings in Pertinent Part

         The ALJ determined that Plaintiff “has the following severe impairments: asthma; affective disorder; high blood pressure; headaches; osteoarthritis of the bilateral knees, right worse than left knee which is mild; and obesity[.]” (Tr. 22 (stating that Plaintiff's “sleep apnea and history of alcohol abuse in remission are non severe impairments because they do not cause the claimant more than mild limitations.”)). In making her decision, the ALJ also considered the impact of Plaintiff's obesity[4] “in conjunction with his knee impairments.” (Tr. 28). The ALJ found that Plaintiff had the RFC

to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except lift and carry 25 pounds frequently and 50 pounds occasionally; pushing and pulling within those weight limits, occasionally as to the lower extremities; no foot pedals as to the right extremity; stand and/or walk 6 hours in an 8 hour workday, no prolonged walking greater than 2 hours at a time; sitting 6 hours in an 8 hour workday; ability to stand and stretch not to exceed 10% of the time; no ladders, ropes or scaffolds; no work hazards such as working at unprotected heights, operating dangerous or fast moving machinery or driving commercial vehicles; no respiratory irritants or temperature extremes; postural activity can be performed on an occasional basis; occasional contact with the public, coworkers and supervisors; unskilled work involving simple routine tasks; and no fast paced work in a static work environment.

(Tr. 26). Based upon the vocational expert's testimony at the hearing, the ALJ determined that Plaintiff was unable to perform his past work as a concrete stone finisher. (Tr. 29). The ALJ relied on the vocational expert's testimony to further determine that Plaintiff would be able to perform other work such as: linen room attendant, Dictionary of Occupational Titles (“DOT”) 222.387-030; laundry worker I, DOT 361.684-014; and shoe cleaner, DOT 788.687-122. (Tr. 30). Therefore, the ALJ found that Plaintiff was not disabled under the Social Security Act from June 15, 2011 through the date of the ALJ's decision. (Id.).

         IV. Discussion

         Plaintiff argues that the Appeals Council erred by failing to consider new evidence (See Complaint at 2; see also Defendant's Brief at 5-6) and that the ALJ erred by: (1) omitting evidence from a nurse practitioner; (2) rejecting Plaintiff's treating psychiatrist's opinion; (3) “giving her opinions on matters outside her area of expertise”; and (4) discounting Plaintiff's credibility. (Plaintiff's Opening Brief at 1-3). Defendant counters that Plaintiff's new evidence does not justify a remand for further administrative proceedings. Defendant also argues that the ALJ's decision is supported by substantial evidence in the administrative record and should be affirmed.

         A. Standard

         The Court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §405(g). The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).

         Substantial evidence is “‘more than a mere scintilla[, ] but not necessarily a preponderance.'” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). Moreover, the Commissioner, not the court, is charged with the duty to weigh the evidence, resolve material conflicts in the evidence and determine the case accordingly. Matney, 981 F.2d at 1019. However, “the Commissioner's decision ‘cannot be affirmed simply by isolating a specific quantum of supporting evidence.'” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)). Rather, the court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence. Id.; Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The court shall “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010.

         B. New Evidence

         While Plaintiff's request for review was pending before the Appeals Council, Plaintiff submitted additional records. (See Tr. at 1-6). Although the Appeals Council accepted and considered some of the evidence, it declined to accept evidence from 2015 because the ALJ “decided your case through April 30, 2014. This information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before April 30, 2014.” (Tr. at 2; see also Tr. at 6). The Appeals Council also advised that Plaintiff could file a new application for benefits if he wanted the Commissioner to consider whether he was disabled after April 30, 2014. (Tr. at 2). The evidence the Appeals Council declined was not made part of the administrative record.

         Plaintiff alleges that the Appeals Council erroneously rejected a form from a doctor because it was dated 2015. (Complaint at 2). To better assess Plaintiff's claim that evidence was improperly omitted, the Court directed Plaintiff to submit the 2015 evidence that the Appeals Council rejected. (See Docs. 22, 24). Plaintiff initially filed documents that did not appear to encompass the evidence submitted to the Appeals Council and he requested an extension to submit the appropriate documents because he had been unable to fully view the Court's order permitting him to file that evidence. (Doc. 26). The Court granted the requested extension. (Doc. 24). Thereafter, Plaintiff submitted documents consisting of: a four-page form, dated August 18, 2015, from Dr. Daniell requesting that Plaintiff be assessed as seriously mentally ill (“SMI”); an August 19, 2015 letter indicating that Plaintiff has been approved for SMI services; other August 2015 documentation concerning verification of Plaintiff's SMI determination; and an October 15, 2015 letter from recovery coach Jordan Picrom indicating that Plaintiff “currently receives services” at COPE Community Services (“COPE”) and that Plaintiff has been diagnosed with bipolar affective disorder and agoraphobia with panic attacks. (Doc. 26).

         When Plaintiff's matter was pending before the Appeals Council, the regulations provided that: “If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge decision.” 20 C.F.R. §§404.970(b)(1), 416.1476(b)(1).[5]The Appeals Council's decision to reject the 2015 records submitted by Plaintiff comported with the applicable regulations.

         Where the plaintiff presents new evidence to the district court during the course of his appeal, the court may remand the case to the Commissioner to take additional evidence pursuant to sentence six of 42 U.S.C. 405(g), “but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding….” 42 U.S.C. § 405(g). Plaintiff bears the burden of showing good cause exists for the failure to submit the evidence in a timely fashion. Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). Evidence is material if it bears “directly and substantially on the matter in dispute.” Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984). Plaintiff can establish good cause by showing he could not have obtained or submitted the evidence before the Commissioner issued a final decision. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). “At a minimum, such evidence must be probative of mental or physical impairment.” Id. (citation omitted). “A claimant does not meet the good cause requirement simply by obtaining a more favorable report from an expert witness once his claim is denied.” Clem, 894 F.2d at 332.

         In addition to the 2015 records the Appeals Council rejected, Plaintiff also submitted to this Court other records from 2011, 2014 and 2015[6], primarily from COPE. (See Doc. 23). Some of the 2014 records are duplicative of those contained in the administrative record, but others are not. The 2014 COPE treatment notes reflect that Plaintiff's wife reported that he “continue[d] to be unmanageable and…paranoid[]” (Doc. 23 at 6 (April 2014)); Plaintiff exhibited poor concentration on mental status examination (Id. at 9 (February 2014)); Plaintiff's speech was pressured, his mood was anxious, and he reported he sees shadows at night and hears voices (Id. at 11 (January 2011)); Plaintiff “appeared to have some memory difficulty” when discussing medication review (Id. at 12 (January 2014)); and Plaintiff denied “suicidality at present but reports he does have suicidal thoughts ‘sometimes'” and noting Plaintiff's flat affect, pressured speech, anxious mood, limited insight/judgment and that he has hallucinations, seeing shadows and things moving (Doc. 23 at 14 (January 2011)). In sum, the records are probative of Plaintiff's mental impairment and symptom allegation, as well as treating Dr. Caplin's opinion. See e.g., Key, 754 F.2d at 1551. However, Plaintiff has not explained why the 2011 and 2014 records were not previously submitted to the ALJ or the Appeals Council. Nonetheless, as discussed below, the Court has determined to remand this matter pursuant to sentence four of §405(g) on an open record for other reasons. In light of Plaintiff's pro se status, and because the matter will be remanded on an open record for other reasons and the records submitted here are material to Plaintiff's claim, remand is also appropriate under sentence six of §405(g) for the ALJ to consider these records on remand.

         C. Nurse Practitioner's evidence

         Plaintiff alleges that the ALJ “would not look at any of the mental health evidence provided because it was signed by a N.P.” (Complaint at 2). He argues that “[e]vidence was omitted regarding [his] mental health by the ALJ Judge Nancy M. Stewart, he had been seen by a Nurse Practitioner not a Medical Doctor.” (Plaintiff's Opening Brief at 1).

         At the hearing, Plaintiff's attorney referred the ALJ to a February 24, 2014 record from Dale Hawking, Physician Nurse Practitioner at COPE, which informed that Plaintiff was being evaluated for a SMI determination. (Tr. 42 (referring to exhibit B17-F which is at Tr. 693[7])). The ALJ responded that a Physician Nurse Practitioner is “not an acceptable medical source, but it is a medical professional and goes to the weighting and all that.” (Tr. 43).

         Social Security regulations place medical professionals into two different categories: “acceptable” medical sources and “other” medical sources. 20 C.F.R. §§404.1513(a), (d), 416.913(a), (d)[8]. A nurse practitioner falls within the “other source” category. See Popa v. Berryhill, F.3d. __, 2017 WL 4160041, at *5 (9th Cir. August 18, 2017), as amended (September 20, 2017) (“The Social Security regulations provide an out-dated view that considers a nurse practitioner as an ‘other source.'”); see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“‘other sources…are not entitled to the same deference[]” as acceptable medical sources)). The ALJ must “provide ‘germane reasons' to reject [a nurse practitioner's]…opinions[;]” Popa, __ F.3d at __, 2017 WL 4160041, at *5, whereas, a more stringent standard is applied to rejection of opinions from “acceptable medical sources”. Consistent with the regulations, the ALJ's statement appears merely to reflect that a nurse practitioner is not considered to be an “acceptable medical source[]” as defined by the regulations. The ALJ's decision does not indicate that she refused to consider any evidence merely because it came from a nurse practitioner.

         With regard to the specific record by NP Hawking that was discussed at the hearing, the attorney stated that the SMI determination had not been completed and that she thought it would be “forthcoming within probably 30 days. They're scheduling everything.” (Tr. 43). The ALJ responded in pertinent part: “Okay, cause I can't hold the record open for something that hasn't been done yet.” (Id.). That conversation occurred on March 6, 2014, the ALJ's decision issued on April 30, 2014. No SMI determination was submitted to the ALJ between the hearing date and the date the ALJ issued her decision.[9]

         After the ALJ issued her decision, Plaintiff submitted to the Appeals Council updated treatment records and other documents he believed would support his claim. (See Tr. at 1-6). Although the Appeals Council considered several of the documents Plaintiff submitted it declined to accept and consider records dated after the ALJ's decision.[10] (See Tr. at 2).

         Plaintiff argues that “Cope omitted papers [sic] years of records from Nurse Practitioner only one on record.” (Plaintiff's Opening Brief at 2 (citing Tr. 693)). Defendant responds that Plaintiff is presumably referring to Nurse Practitioner Hawking's statement that Plaintiff received mental health treatment at COPE “‘back to 2005 or so as well.'” (Defendant's Brief at 12 (quoting Tr. 693)). The record does contain some records from various providers dating back to 2005 and before. (See e.g., 347, 351-354, 356-94; see also 350 (August 2001 prescriber log)).

         An “ALJ's duty to supplement a claimant's record is triggered by ambiguous evidence, the ALJ's own finding that the record is inadequate or the ALJ's reliance on an expert's conclusion that the evidence is ambiguous.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The Court agrees with Defendant to the extent that treatment records from 2005 would likely have limited probative value in light of Plaintiff's June 15, 2011 alleged onset date.[11] Moreover, the current record reflects Plaintiff's history, including his longstanding diagnoses of depression and anxiety, prior to the alleged onset date. (See e.g., Tr. 350 (August 2001 prescription activity log noting diagnoses of depression, anxiety disorder, and polysubstance abuse by history)), Tr. 367 (June 23, 2005 working diagnoses of panic disorder without agoraphobia, alcohol abuse, rule out bipolar disorder, and noting “emergence of agoraphobia”); Tr. 375-95 (June 28, 2005 record including Behavioral Health and Medical History Questionnaire, Core Assessment, Mental Status Examination, and Clinical Formulation and Diagnoses), Tr. 363-65 (June 30, 2005 diagnoses of anxiety disorder, rule out panic disorder with agoraphobia, depressive disorder, history of alcohol abuse, past history of amphetamine, cocaine abuse)). The ALJ also stated that “[t]o give the claimant every benefit of the doubt, I have considered all of the claimant's records, including those for treatment prior to his alleged onset date in order to determine his impairments and functioning from his alleged onset date to present.” (Tr. at 24). On the instant record, there is no indication that the 2005 COPE records were not obtained because they were authored by a nurse practitioner. Consequently, the record does not support Plaintiff's contention that the ALJ erred by declining to consider evidence for the reason that it came from a nurse practitioner.

         D. Treating Doctor's Opinion Regarding Mental Impairments

         Plaintiff challenges the ALJ's decision to reject treating psychiatrist Olga Caplin's opinion.

         1. Standard

         Medical opinions and conclusions of treating doctors are accorded special weight because treating doctors are in a unique position to know claimants as individuals, and because the continuity of their dealings with claimants enhances their ability to assess the claimants' problems. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (“A treating physician's opinion is entitled to substantial weight.”) (internal quotation marks and citation omitted); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); 20 C.F.R. §§ 404.1527, 416.927.

         A treating physician's medical opinion “is given ‘controlling weight' so long as it is ‘well-supported by medically acceptable clinical laboratory diagnostic techniques and is not inconsistent with the other substantial evidence [in the claimant's] case record.'” Trevizo v. Berryhill, __ F.3d __, 2017 WL 4053751, at *7 (9th Cir. Sept. 14, 2017) (quoting 20 C.F.R. §404.1527(c)(2)); see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (same)); 20 C.F.R. § 416.927(c)(2). When the treating doctor's opinion is not given controlling weight, “it is weighted according to factors such as the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, consistency with the record, and specialization of the physician.” Trevizo, __ F.3d. at __, 2017 WL 4053751, at *7 (citing 20 C.F.R. at 404.1527(c)(2)-(6); see also 20 C.F.R. § 416.927(c)(2)); see also SSR 96-2P, 1996 WL 374188, *4[12] (“Adjudicators must remember that a finding that a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with other substantial evidence in the case record means only that the opinion is not entitled to “controlling weight, ” not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.”). Thus, even if the treating physician's opinion does not meet the test for controlling weight, the treating physician's opinion may still be entitled to the greatest weight and should be adopted. Orn, 495 F.3d at 631. Importantly, the ALJ's failure to consider the factors for weighting the opinion “alone constitutes reversible error.” Trevizo, __ F.3d. at __, 2017 WL 4053751, at *7.

         Moreover, an ALJ may reject a treating doctor's uncontradicted opinion only after giving “‘clear and convincing' reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). “Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record.” Id., 157 F.3d at 725 (citing Lester, 81 F.3d. at 830). Additionally, “like the opinion of a treating doctor, the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31.

         2. Dr. Caplin's Opinion and the ALJ's rejection of same

         In August 2012, Plaintiff's treating psychiatrist Olga Caplin, who had treated Plaintiff since February 2012, completed a Medical Impairment Residual Functional Capacity Questionnaire. (Tr. at 489-94). Dr. Caplin diagnosed: r/o bipolar II and mood disorder, nos. (Tr. 489). She stated that “[i]nsomnia, headaches, anorexia, anxiety, depression, and environmental stressors impair functioning. [History] of aud. hallucinations.” (Id.). Dr. Caplin indicated Plaintiff was unable to meet competitive standards with regard to: maintaining regular attendance and being punctual within customary, usual strict tolerances; maintaining attention for two-hour segments; completing a normal workday and workweek without interruptions from psychologically based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; accepting instructions and responding appropriately to criticism from supervisors; getting along with co-workers or peers without causing them undue distraction or exhibiting behavioral extremes; responding appropriately to changes in a routine work setting; dealing with normal work stress; understanding, remembering and carrying out detailed instructions; dealing with stress of semiskilled and skilled work; interacting appropriately with the general public; maintaining socially appropriate behavior, and traveling in unfamiliar places. (Tr. at 491-92). Dr. Caplin also indicated that Plaintiff would be seriously limited but not precluded from: understanding, remembering and carrying out short and simple instructions; sustaining an ordinary routine without special supervisions; working in condition with or proximity to others without being unduly distracted; making simple work-related decisions; asking simple questions or requesting assistance; being aware of normal hazards and taking appropriate precautions; setting realistic goals; making plans independently of others; and adhering to basic standards of neatness and cleanliness. (Id.). Dr. Caplin stated that Plaintiff's “severe [and] persistent mental illness” supported the assessed limitations. (Id.).

         Dr. Caplin further opined that Plaintiff was markedly restricted: in activities of daily living; maintaining social functioning; maintaining concentration, persistence or pace; and that he had three episodes of decompensation within a 12-month period, each of at least two weeks in duration. (Tr. at 493). She stated that Plaintiff would be expected to miss more than four days of work per ...


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